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End of mission statement by Michel Forst, United Nations Special Rapporteur on the situation of human rights defenders on his visit to the Republic of Moldova, 25 – 29 June 2018

Romanian | Russian

1. Introduction 

Good morning ladies and gentlemen,

Let me begin by warmly thanking the Government of the Republic of Moldova for inviting me to undertake an official mission, which took place this week, from 25 to 29 June 2018.

I would like to commend the Government of the Republic of Moldova for its excellent cooperation and efforts to ensure that I could make the most of my visit. I have met with high-level representatives of the Parliament, Ministries of Foreign Affairs, Justice and Internal Affairs, as well as with senior officials from the Superior Council of Magistracy, General Prosecutor’s Office, the Service for Information and Security, General Police Inspectorate, People’s Advocate Office (the Ombudsperson) and the Council for the prevention and elimination of discrimination and ensuring equality (Equality Council), as well as the members of the National Preventive Mechanism.

I had the chance to meet with the UN Resident Coordinator and other United Nations agencies, as well as members of the diplomatic corps. I also had the opportunity to meet the de facto authorities of the Transnistrian region and I would like to thank them for their excellent cooperation.

We extensively discussed with a wide range of human rights defenders, on both banks of the Nistru-river. I am particularly grateful for their testimonies, recommendations and insights.

I would also like to thank everyone who helped in organizing this visit, with special thanks to the Office of the High Commissioner for Human Rights in the Republic of Moldova.

In line with international human rights law, the primary duty to promote and protect human rights and fundamental freedoms lies within the State. This includes guaranteeing the right of everyone, individually and in association with others, to strive for the protection and realization of human rights. In other words, everyone of us has the right to defend all human rights for all.

The objective of my visit was to assess, in the spirit of cooperation and dialogue, if the Republic of Moldova provides the basic elements of a safe and enabling environment for human rights defenders. In other words, the visit was seeking to answer the question whether human rights defenders feel safe and empowered in the Republic of Moldova, including in the Transnistrian region.

Ensuring these conditions is one of the principal responsibilities of States and authorities. I have therefore focused primarily on evaluating some of the basic elements of such a safe and enabling environment, namely: a conducive legal and institutional framework; access to justice; independent and strong national human rights institutions; effective protection policies and mechanisms paying attention to groups at risk and applying a gender-sensitive approach; non-State actors that respect and support the work of defenders; and a strong and dynamic community of defenders.

In Chisinau and Tiraspol, I have had the chance to meet with more than 110 human rights defenders, approximately 55 percent of which were women defenders, and I was impressed by their commitment and engagement. Among these human rights defenders I met persons with disabilities, members of different ethnic communities (Roma, Armenian, Belarusian, Bulgarian, Jewish, Ukrainian, Gagauzian and Georgian) lawyers, journalists and defenders working on sensitive issues such as sexual and reproductive rights or sexual orientation and gender identity. We also received information in writing from various sources helping us to better understand the situation of Human Rights Defenders and the broad context in which they operate.

The UN has a very extensive and broad definition of human rights defenders, which has been enshrined in the Declaration on Human Rights Defenders, adopted by consensus in December 1998. During the visit, I had the opportunity, on many occasions, to refer to this definition. I recalled that human rights defenders are those who, individually or with others, act to promote or protect human rights, nationally and internationally, in a peaceful manner.

They are people who advocate for freedom of expression, freedom of assembly, access to information, rule of law, liberty of movement, fair trial and judicial safeguards, equality of rights for men and women, non-discrimination and other human rights. They do not need to belong to any registered organization to be a human rights defender. They can be ordinary women, men or children, who believe in the universality of human rights and act to defend them. They are agents of change, safeguarding democracy and ensuring that it remains open, pluralistic and participatory.

At the outset, I wish to recall that I am not employed by the United Nations and the position I hold is honorary. As an independent expert, I exercise my professional and impartial judgment and report directly to the United Nations Human Rights Council and the General Assembly.

Today, I will confine myself to preliminary observations and recommendations on some of the main issues, which will be elaborated in more detail in the report, once I fully review the materials and documents that I have collected during the visit. I will present my final report to the UN Human Rights Council in Geneva, in March 2019.

2. Overall Assessment: Is there a safe an enabling environment in the Republic of Moldova for human rights defenders?

Human rights defenders in Moldova are active in many different fields, including justice, freedom of expression and other civil and political rights, gender equality, promotion of rights of persons with disabilities, Roma and other minorities, etc. Moldova has a good body of laws, which in most respects and conduces to an appropriate environment for the operation of the human rights defenders. 

This mission took place in a context of popular protests due to the non-validation of the election of the Mayor of Chisinau by all levels of the national courts of law. The decision shivered civil society and human rights defenders, and the issue was raised during most meetings as an example of actions contributing to shrinking the rule of law and undermining the democracy in the country. I have received several testimonies expressing serious concern about the danger that this decision represents for the celebration of truly democratic elections in the country.

During the week of my visit to the country, lawyers also took the streets in protesting against the lack of effective remedies for their clients, including the excessive use of arrests as a pre-trial measure (with one of the highest rates in Europe), rather than resorting to other alternative measures.

In this context, I would like to note that the demonstrations so far were carried out peacefully and that the police forces ensured the conditions for demonstrators to exercise their rights.

Having carefully considered the information received from the Government, civil society and other stakeholders, I regret to conclude that despite a globally satisfactory legislative framework, the situation of human rights defenders requires improvement in the Republic of Moldova.

Human rights defenders and journalists are victims of stigmatization campaigns, lawyers face politically motivated criminal charges or are threatened whenever they defend dissenting voices, journalists experience limitations in access to information and National Human Rights Institutions feel disregarded in practice.

In the Transnistrian region, the legislation on non-profit organizations raises serious concerns and human rights defenders sometimes don’t feel operating in a safe and enabling environment.

3. Legislative and Institutional Framework 

Legal Framework

The 1994 Constitution of the Republic of Moldova guarantees the principle of equality (art. 16), access to justice (art. 20), right to defense (art. 26), free movement (art. 27), freedom of opinion and expression (art. 32), right of access to information (art. 34), freedom of assembly (art. 40) and the right for remedy for the persons prejudiced by a public authority.

The Constitution establishes that constitutional provisions on human rights and freedoms should be interpreted and applied in accordance with the Universal Declaration and other human rights Covenants and treaties to which the Republic of Moldova is party. And, that in case of disagreements, international regulations will be given priority. It also states that the Republic of Moldova commits to observe the treaties to which it is party and that provisions of treaties that come into force have precedence over the Constitution1.

As of June 2018, the Republic of Moldova has ratified seven core human rights treaties, but it has not ratified a number of other important UN human rights instruments.

Recommendation:

In this regard, I encourage the Republic of Moldova to ratify the Convention for the Protection of All Persons from Enforced Disappearance, which it has signed, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; as well as the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of Persons with Disabilities.

The ratification of these instruments would provide human rights defenders with important tools to realize the rights of victims of enforced disappearance, migrant workers and their families, children and persons with disabilities; as well as improve access to economic and social rights.

4. Stigmatization and intimidation of human rights defenders

While civil society organizations and human rights defenders have the right to freely conduct their human rights works and the Government has publicly declared its openness to engage with them, in practice human rights defenders face several challenges, in the capital as well as in other regions.

While the Government has supported all resolutions and joint statements on human rights defenders at the UN General Assembly and the Human Rights Council, I have noted with great concerns that public authorities in Moldova have stigmatized, sometimes vilified and discredited human rights defenders and their work, including through mass media. I have received allegations of intimidation and threats towards human rights defenders by public representatives regarding their human rights work, particularly when they have shown criticism towards decisions taken by the government. Civil society organizations state that their contributions are not considered in practice and that carrying out advocacy activities have led them to finding difficulties to dialogue with public officials.

This environment sends chilling signals across the system and weakens civil society movements.

Civil society claims it has no practical tools to influence the decision-making process. Policy making and implementation process is often not inclusive and transparent. The principles of participation and accountability are not part of the interaction between the authorities and human rights defenders.

Recommendation:

The state should develop legal provisions and practices to safeguard the principles of genuine participation of civil society in the decision-making process at central as well as at local levels. It should also ensure that the NGOs mass media and other human rights defenders have practical tools to hold accountable policy makers and influence the process of decision making and policy implementation. The NGOs and mass media should have easier access to publicly important information. 

As the international community is celebrating the 20th anniversary of the UN Declaration on Human Rights Defenders, the government of Moldova should publicly acknowledge the positive contribution of human rights defenders to the promotion and protection of the rights and values enshrined in the Universal Declaration of Human Rights.

5. Institutional developments

At the moment, the draft law on non-profit organizations was approved in the first reading at the Parliament. It is expected to go through a second reading in July 2018 before its approval. The civil society organizations I have met have expressed their satisfaction with the draft of the law, which was passed at the first reading. However, and considering the experience with the previous draft law, they fear that new amendments, that may denaturalize the present draft, may be introduced in the second reading, without any previous consultations with them, restricting access to international funding.  

While the Republic of Moldova offers civil society organizations the possibility to obtain funding through the 2% designation system (“2% law”), they face significant difficulties and deterrents in accessing the system and allege that the procedure of obtaining and maintaining the status is too burdensome.

In the Transnistrian region, my attention has been drawn to the provisions of the NGO legislation and notably the introduction of a restriction to advocacy defined as “political activities” which is not in line with international standards.

I welcome the integration and consolidation into the National Human Rights Action Plan 2018-2022 approved in May 2018 of most of the points raised by the second Universal Periodic Review of Moldova, as well as by UN human rights treaty bodies, including points on the establishment of a well-staffed permanent Human Rights Secretariat at the State Chancellery (Office of the Prime Minister). At the same time, I regret that several of the key points from the 2017 Concluding Observations on Moldova by the UN Committee Against Torture – on transfer of jurisdiction over the penitentiary health care facilities and of the police isolators – were removed from the Plan by the Parliamentary majority at the request of the Ministry of Justice.  

Recommendation:

I urge the Parliament to approve an NGO law that is in accordance with relevant international human rights standards. In particular, I would like to request that any further amendment does not alter the essence of the draft as it was initially submitted. Any new amendment should be discussed and agreed with civil society organizations. I underline the importance of transparency, publicity and access to information in this process, stressing the role of civil society in particular, in a piece of legislation that directly concerns them.

I encourage the authorities to consistently involve civil society organizations and individual human rights defenders in the process of establishing and work of the National Human Rights Council and the Permanent Human Rights Secretariat so that they effectively coordinate and monitor the implementation of the National Human Rights Action Plan.

6. Fight against corruption

Allegations of corruption at judicial and prosecutorial level was one of the main concerns raised by civil society organizations during my visit. Judges that examine cases or adopt decisions independently and according to national and international legislation on politically sensitive cases endure the risk of being harassed, dismissed or have unfounded criminal charges against them, on grounds such as delivering knowingly a decision that it is illegal or wrong.

I have also received testimonies about the fact that mass media and civil society organizations do not always have access to court hearings, particularly on socially and politically sensitive cases. Civil society organizations complained that there were cases where court hearings took place behind closed doors with no legal grounds.

Recommendation

I call on the authorities to enhance access of the mass media and civil society to the information related to court hearings on cases of social or political resonance. I also recommend that the Government develop viable mechanisms for civil society to engage in monitoring judicial cases and informing society about developments related to those cases. 

7.  National Human Rights Institutions

During the visit, I have met the Moldovan People’s Advocate (Ombudsperson). According to information received the Ombudsperson’s Office does not have the power to enforce its decisions. It receives limited funding and it does not enjoy complete financial autonomy. The current staffing and the premises do not allow the institution to completely fulfill its mandate. His last annual report has been presented to the Parliament but his main recommendations have not been discussed.  

Despite numerous shortcomings, the Sub-Committee of Accreditation of National Human Rights Institute has recently recommended the granting of “A status” with a large set of recommendations aiming at a greater compliance with the Paris Principles. I encourage the government and the Ombudsman to seriously consider those recommendations.

The Equality Council has a broad mandate to examine cases of discrimination but cannot impose sanctions. Similarly, to the Ombudsperson’s Office, the Equality Council is notably under resourced and understaffed.

The two National Human Rights Institutions have shared with me their concerns about the excessive control exercised over their expenditures, which is perceived as a form of harassment by the government.

I am concerned about the quality of collaboration between civil society members of the National Torture Prevention Mechanism and the Ombudsperson’s Office, as well as about the ambiguity of the status of the National Torture Prevention Mechanism in the current Law on the People’s Advocate (Ombudsperson).

At each and every occasion, I recall that, as part of the institutional architecture of the State, national human rights institutions play a key role in ensuring a safe and conducive environment for human rights defenders. National human rights institutions that comply with the Paris Principles are in a unique position to guide and advise Governments on their human rights obligations and ensure that international principles and standards are adequately incorporated into domestic law and mainstreamed into public policies including that of human rights defenders.

Evidence shows that when the mandate of national human rights institutions includes competence to investigate individual complaints and provide effective protection to complainants, and enjoy adequate resources and control over them, they can play a leading role in cases where States’ judicial systems are unable or unwilling to adjudicate on alleged violations against defenders.

Recommendations:

The budget for the Ombudsperson’s Office and of the Equality Council should be increased and their financial independence ensured, in order to allow them to carry out their functions effectively. Authorities should also strengthen their role, seriously taking into consideration their recommendations and implementing them.

Authorities should also expand the scope of the Ombudsperson’s Office by serving as a focal point for human rights defenders and they should provide the Equality Council with the power to directly apply sanctions.

Human rights defenders could be considered as a specific group at risk and, as such, fall within the mandate of the Ombudsperson’s Office. This protection could be offered in a number of ways, including through formal complaints mechanisms and protection programs; advocacy and awareness raising; offering public support when violations are committed against defenders; and capacity building.

8. National Protection Mechanism

The National Human Rights Action Plan does not include any specific provision to protect human rights defenders at risk. This is why I have discussed with the Government the possibility to develop a national law on human rights defenders aiming at better recognizing the legitimacy of the work of human rights defenders.

Recommendation

In this context, I would recommend that the authorities examine the possibility of drafting and passing a special law on human rights defenders.

9. Challenges of groups at risk

Some groups of defenders are particularly vulnerable due to the very nature of the rights they are defending, their own identity or the specificities of their work. In fact, due to the environment in the country, which hampers human rights work, there have been human rights defenders that had to leave the country to claim asylum abroad.

Groups particularly at risk in Moldova include: lawyers, journalists, judges, LGBTI rights defenders and women rights defenders.

Lawyers

I am concerned about several worrying allegations I have received regarding administrative or criminal charges on unfounded allegations or spurious grounds faced by lawyers defending opposition figures, dissenting voices or raising awareness about corruption cases and human rights violations which may not conform to the principle of legality or comply with international human right standards. This is a trend that had been initiated against political opponents and judges in 2014, which has been extended to lawyers and other civil society members since the beginning of 2016.

Lawyers are also sometimes intimidated and receive threats to force them not to provide legal assistance to these clients. The threats and criminal charges faced by lawyers include in some stances their relatives. In this context, lawyers risk from losing their license to practice to very long prison sentences.

Some lawyers and attorneys have shared with me their support to the initiative by the Parliamentary Assembly of the Council of Europe to draft a European Convention on the Profession of Lawyers that would grant a better protection to the profession.

Recommendations:

The Moldovan Prosecutor’s Office should stop immediately prosecution on arbitrary grounds of lawyers defending opposition figures or dissenting voices.

Lawyers should beneficiate from additional mechanisms of protection as human rights defenders. The legal framework regulating lawyer’s activity should enshrine measures of protection of lawyers against impunity.

The Union of Lawyers should take a more active role against the criminalization of lawyers and the threats and intimidations they are victims of and develop specific provisions in its by-laws aiming at protecting lawyers and attorneys from threats and attacks.

The Republic of Moldova should consider participating in the drafting of a European Convention on the Profession of Lawyer as a possible mean to increase their protection.

Journalists and media workers

I have received serious allegations about intimidation, threats against journalists and media workers, including facing defamation and criminal charges, especially against investigative journalists. Some of them have also shared their experience of being subjected to discrediting and defamation campaigns, including through social media. They fear that as Parliamentarian elections approach threatening attitudes against them will increase.

Journalists face serious challenges in accessing information and claim that the process of challenging in court the denial of access to information is burdensome.

According to the testimonies I have received, the law on access to information is outdated and whenever journalists make a request for information to authorities they have to wait for weeks before receiving a response and/or the response received does not provide relevant information. 

Recommendations:

The state is urged to create mechanisms so that media outlets and independent journalists have access to publicly available information. The State should properly regulate the cases when a person can be trailed for defamation.

Journalists should consider the Council of Europe Platform for the Protection of Journalists as a tool to share concerns on serious concerns about media freedom and safety of journalists in Moldova, as guaranteed by Art. 10 of the European Convention on Human Rights.

Defenders of the rights of Lesbian, Gay, Bisexual, Transgender and Intersex people

While LGBTI defenders have transmitted satisfaction about the positive dynamic established during the preparation and actual Pride March, I am very concerned about allegations of homophobic attitudes in society, including hate speech. I am also worried about the lack of legislation to specifically address hate crime and about the fact that the specific prohibition of discrimination on grounds of sexual orientation and gender identity is not established in the legislation.

I would like also to use this opportunity to recall, that sexual orientation and gender identity are grounds of discrimination prohibited under international law, and the Republic of Moldova is a State Party to the relevant human rights treaties. In 2016, the Committee on Economic, Social and Cultural Rights established that "any other social condition", as set forth in article 2.2 of the ICESCR, includes sexual orientation. The Human Rights Committee also underlined the legal obligation of States Parties to guarantee all individuals the rights recognized in the ICCPR, without distinction based on sexual orientation or gender identity and established that "States parties must respond adequately to violence against certain categories of victims, including violence against persons based on their sexual orientation or gender identity”.

Recommendation

I urge authorities of the Republic of Moldova to approve the package of regulations on hate crime and hate speech that is at the moment in the Parliament. I am also recommending to ensure effective protection for LGBTI persons by enlarging the list of grounds for discriminations, hate crime and hate speech by including sexual orientation and gender identity amongst the discrimination grounds

Women human rights defenders (WHRDs)

I would like to commend the leading role played by women in the promotion and protection of human rights in the Republic of Moldova; and support the great work done by them.

In any case, I would like to highlight the measures adopted by the Republic of Moldova in favor of gender equality, including the 40% gender quota for party lists during Parliamentary elections.

In line with my commitment to develop a gender-specific approach to the situation of human rights defenders, I held a meeting with women human rights defenders.

Women human rights defenders face the same risks as their male counterparts but they are also exposed to gender-specific threats and attacks.

Recommendations:

The State should pay particular attention to women’s rights defenders and actively engage in collaboration with them in developing and implementing policies oriented at protecting the rights of women, particularly the rights of the most disadvantaged ones.

I encourage the Moldovan authorities to add provisions requiring respect for the 40 percent gender quota across all segments of party lists in elections, as well as to take a much more affirmative action and implement further measures.

Roma mediators

I have received positive feedback about the collaboration between Roma civil society and the State, regarding the establishment of a network of Roma community mediators. These mediators facilitate the interaction between Roma communities and State authorities, as well as the educational and social integration of Roma people.

However, the community mediators network is not fully operational due to the lack of necessary financial resources for its effective implementation. Roma mediators also complained about the lack of a training curricula for them. Other concerns raised included their lack of participation in decisions that concern them, as well as the discrimination they endure, particularly Roma women.

Recommendations:

The Government is encouraged to continue its efforts to strengthen the Roma community mediators network through the full funding of all 46 Roma mediators’ positions.

Roma community mediators should be properly trained in order to better promote and defend the rights of their peers, that is why the Government should elaborate proper initial and continuous training curricula for them.

10. The role of the international community

A large number of NGOs and defenders that I met during the course of the mission complained about the lack of support of the international community. Many of them, mostly outside of the capital explained that they had never met with embassy staff or representatives of the international community nor been invited to share their concerns with them. Almost all of them complained about the absence of funding when trying to set up new activities or new organizations, and about not being informed of call for funding applications. They also referred to the lack of presence from international observers when they have been brought to court as a result of their work.

I strongly recommend that the international community reinforces their efforts to fully implement the provisions of the international or national guidelines on the protection of human rights defenders, including through trial observation, and political and financial support to defenders at risk.

Embassy staff should travel in the regions to try to reach out remote defenders and communities, as well as defenders from most vulnerable groups – persons with disabilities, Roma, ethno-linguistic and religious minorities, survivors of sexual violence, ex-detainees, person psychosocial disabilities, etc.

11. Conclusions

I would like to conclude by saying that there is still a gap between international engagement at the UN and domestic implementation. I would like to express my continued commitment to provide technical support to the authorities of the Republic of Moldova. As we celebrate this year the 20th anniversary of the United Nations Declaration on human rights defenders and the 70th anniversary of the Universal Declaration of Human Rights, I would like to invite the Government of the Republic of Moldova to take strong actions towards the recognition of the role that human rights defenders play in the Republic of Moldova and across the world.

As the Republic of Moldova has informed me of its intention to become a candidate for membership at the UN Human Rights Council, I would also like to invite the Government to take into consideration the possibility to introduce voluntary pledges on the protection and promotion of human rights defenders in its candidacy.

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Notes:
1. See Art 4 and 8 of the Constitution of the Republic of Moldova.